1. This is an interpleader suit which has been dismissed by the Subordinate Judge as not sustainable in law. The plaintiffs' appeal against this dismissal and we think the appeal is well-founded.
2. For the purpose of this appeal it is sufficient to state the following facts. The late zamindar of Sivaganga granted perpetual lease of certain villages to his wife, Raku Nachiar in 1887. Subsequently, in the same year, he leased to the plaintiffs, for a long term of years, the whole zamindari, excluding the villages already leased to his wife and other relations. In 1889 Raku Nachiar gave a sub-lease of five of her Villages to the plaintiffs for 29 years on a rent of Rs. 10,000 a year and put the plaintiffs in possession receiving the rent in advance up to June 1900. Raku Nachiar died in 1892, leaving her surviving four daughters, who are defendants Nos. 3 to 6, and an adopted son. In 1898 the zamindar died, and his adopted son (7th defendant) became the minor zamindar. In Original Suit No. 18 of 1901, the 6th defendant and one Ramanathan Chetty, the late father of the defendants Nos. 1 and 2, to whom the 6th defendant had leased the above five villages, sued to recover them from the defendants Nos. 3 to 5: and the 7th defendant put in a petition stating that the villages belonged to him and claiming to be made a party, which was dismissed. In March 1902, the parties to Original Suit No. 18/01 entered into a compromise, and in pursuance of it gave notice to the plaintiffs that the plaintiffs should pay the rent of the five villages in future to Ramanathan Chetty, the father of defendants Nos. 1 and 2.
3. On the 22nd of June in the same year the Court of Wards, as guardi, an of the minor zamindar (the 7th defendant), also gave notice to the plaintiffs, stating that the leases executed in 1887 by the late zamindar in favour of Raku Nachiar were colourable transactions, executed by him benami in the name of his wife, but for his (the late zamindar's) benefit and that the lease of the five villages granted by her to the plaintiffs in 1889 was for the benefit of the later zamindar and requiring the plaintiffs to pay the rents of the villages to the Court of Wards on account of the minor zemindar. In these circumstances the plaintiffs, not knowing whether they should pay the rent to the defendants Nos. 1 to 6 or to the 7th defendant filed this (interpleader) suit and deposited in Court the rent due, Rs. 5,60,601.
4. The Subordinate Judge having held that the suit was unsustainable with reference to the provisions of Section 474, Civil Procedure Code (Act XIV of 1882), the plaintiffs appeal.
5. The Vakil for defendants Nos. 1 to 6 takes the preliminary objection that the order of the Subordinate Judge dismissing the suit is not one of the orders in interpleader suits against which an appeal is provided for by Clause 23, Section 588 of the Code of Civil Procedure, nor is it a decree within the definition in Section 2 of the Code. We think the latter contention is not sustainable.
6. The order of the Subordinate Judge was the formal expression of his adjudication on the defence set up in the suit and it decided the suit so for as the Subordinate Judge was concerned. It is, therefore, a 'decree' within the meaning of Section 2 of the Code. We disallow the objection. The main reason given by the Subordinate Judge for holding that an interpleader suit will not lie on the facts stated in this case, is that Section 474, Civil Procedure Code, expressly prohibits a tenant from suing his landlord for the purpose of compelling the landlord to interplead with any person other than a person making claim 'through the landlord' and he considered that in the present case the 7th defendant could not be said to claim through Raku Nachiar, (the landlord under whom the plaintiffs held), but must be regarded as claiming adversely to her. He also dwelt on various circumstances which in his view went to show that the 7th defendant's plea of benami was not true and on the argument that the lease of the plaint villages having been given with the late zamindar's consent, the 7th defendant would be estopped from again demanding from the plaintiffs any rent paid by them to Raku Nachiar's representatives (defendants Nos. 1 to 6).
7. Whatever might be the case with regard to payment made bona fide before the plaintiff had notice of the 7th defendant's claim, it is difficult to see how plaintiffs would be protected if they wrongly paid away the rents after notice of his claim; and in the case of Suart v. Welch 4 Myl. & C. 305 the Lord Chancellor, referring to the case of Nickalson v. Knowles 5 Mad. 47 stated that the authorities at law show that Sir J. Leach was not warranted in refusing the injunction upon the ground that the case of the party giving the notice was so clearly unfounded as not to entitle the plaintiff to have it tried. In the present case the Court of Wards has made a formal claim to the rent of the plaint villages on behalf of the 7th defendant and we must proceed and deal with the question of interpleader without reference to any alleged weakness in his case. We must, in fact, decide the question on the supposition that the case put forward by him is, or may be, true. If that case is true, then Raku Nachiar was in the position of a trustee for the real owner, who was the zamindar; and the defendants Nos. 1 to 6, who claim as her heirs, are trustees for the 7th defendant, who is now the zamindar. No doubt the general rule of English Law is that an interpleader suit will only be maintainable if the landlord subsequent to the letting has done some act whereby his right to recover the rent is entangled Cook v. The Earl of Rosslyn 65 English Rept. 871 at p. 873 but there are exceptions to this rule. In the case of Dungry v. Angore 30 English Rept. 644 at p. 645 the Solicitor General referred to the case of Wood v. Rayee tried before Lord Thanlaw and said a house was devised to trustees for the separate use of Mrs. Kayee, with a provision for the rent to be paid to the person, to whom she should give a letter of attorney. The trustees not acting, Mr. and Mrs. Kayee entered. In 1787 the trustees, at the instigation of her son, insisted that as the estate was devised to them, they had a right to receive the rent and apply it to answer repairs on other parts of the estate, and they gave notice to the tenant not to pay. In consequence of his refusal the lessor proceeded upon the lease; and the tenant filed a bill. It was insisted, as it is now, that a person who had taken a lease from another, could not file such a bill. The Lord Chancellor said it would be the most detrimental thing to the public and to tenants, because nothing can be more material than that tenants shall be safe in the occupation of the estate; that if the landlord has a complete title, he may indemnify them but that if he does not take care of the defence he consequence is the tenant had a right come into equity and the Lord Chancellor after expressing his concurrence with he decision in Wood v. Kayee said: 'The title of the trustees was derivative from that of the cestui que trust, and was consistent with it. The tenant did not come to disavow the title of the landlord. It was a question between the trustees and the cestui que trust with which the tenant had nothing to do.' Dungry v. Angore 30 English Rept. 644 at p. 645. The principle of that case seems to us to be applicable to the present case. According to the allegations of 7th defendant the title of Raku Nachiar (and of defendants Nos. 1 to 6) was derivative from the zamindar and was consistent with it. The plaintiffs do not deny the title of Raku Nachiar to grant them the lease, but they do not know whether she did so in her own right or benami for the zamindar. The plaintiffs have no interest in the matter except to be protected from being made to pay the rent twice over. The 7th defendant does not deny the title of Rakn Nachiar to grant the lease. He affirms it, but says that it was granted on his fathers' behalf, and he has now succeeded to his father's rights. Then it was argued that Section 474, Civil Procedure Code, which contains the rule applicable to the Courts in India, is narrower than the rules deducible from the English cases and forbids a tenant to sue to compel his landlord to interplead with any person other than a person 'making claim through such landlord.' We must, therefore, see whether the 7th defendant makes claim through Raku Nachiar and it is not difficult to hold that he does so. What he says is that Raku Nachiar was entitled by arrangement with her husband to hold the position of the landlord and what he claims is the right to stand in her shoes. In other words he makes claim through her when he claims to occupy as between himself and the plaintiffs, the same position which she occupied. So far as the plaintiffs are concerned, the 7th defendant does not claim any right different from that of Raku Nachiar. He, no doubt, claims the right when he has received the rent to appropriate it to himself as being the owner of the land, and denies that Raku Nachiar held that position, but that claim makes no difference so far as the plaintiffs are concerned. As against them the claim of the 7th defendant is simply to occupy the position of Raku Nachiar. He claims to be the landlord by reason of the lease executed by her, and so he claims through her. For these reasons we think that it is open to the plaintiffs to maintain this interpleader suit. We accordingly set aside the decree of the Subordinate Judge, and remand the suit for disposal according to law. Appellants will have their costs both in this and in the lower Courts. Costs of the other parties will be provided for in the fresh decree of the lower Court.